About this case:

• Citation:
  [2022] NICA 27
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

Background

The applicant, owner of Mullaghglass Landfill Site, challenged a decision of Belfast City Council to serve an abatement notice citing statutory nuisance at the site. This was a renewed application for leave following a decision of Mr Justice David Scoffield in December 2021, where he refused leave to apply for judicial review.

The applicant operates the landfill pursuant to a permit issued under the Pollution Prevention and Council (Industrial Emissions) Regulations (Northern Ireland) 2013. As part of this permit, the applicant also operates an odour management plan.

Despite this, local residents in the Belfast City and Lisburn City areas complained about unpleasant odours emanating from the site, and about emissions having adverse health effects on them.

Belfast City Council therefore held a council meeting, and decided to issue an abatement notice against the applicant. The applicant had a statutory right of appeal pursuant to section 65(8) of the Act, which they exercised.

The applicant’s case

The applicant argued that the statutory appeals process was not an effective remedy. This was because of a myriad of reasons, including that there had been procedural unfairness, a failure to provide reasons, and irrationality.

They argued that they had not been engaged with, and that except for one site visit, that they had received no communication prior to the abatement notice. The council meeting minutes also had no record of the discussion, and the proposing councillor had learned the ‘tactical facts’ from a council officer the night before the meeting to support his presentation.

The applicant alleged that the inadequate inquiry breached the statutory duty flowing from section 64(b) of the Act which reads:

The applicant further claimed that the proposed respondent acted ultra vires as they were interfering with the Northern Ireland Environment Agency’s role as a regulator of the site.

Following on from the above, the applicant claimed that the gravity of the public law unlawfulness meant that judicial review was the correct legal route for redress in this case, not the statutory appeal system.

The applicant submitted that the appeal remit would not allow the statutory appeal tribunal to deal with issues of public law illegality.

The Council disputed this interpretation of the appeals system, and argued that an appeal could deal with all of the issues and was the correct route to take, given that it was a statutory route provided by Parliament. They therefore asked the court to dismiss the application.

Judicial review

To assess whether judicial review was appropriate here, the court noted that the general principle is that judicial review is a last resort and is generally inappropriate where a suitable alternative remedy exists.

In assessing the considerations for judicial review, the court surmised the following from case law and textbooks:

• Judicial review is a remedy of last resort and may not be the only available avenue of challenging a particular decision.

• A court may, in its discretion, refuse to grant permission to apply for judicial review or refuse a remedy at the substantive hearing if an adequate alternative remedy exists, or if such a remedy existed but the claimant had failed to use it.

• The courts take the view that save in the most exceptional circumstances, judicial review will not be exercised where other remedies were available and have not been used.

• The rationale for the exhaustion of alternative remedies principle is that it is not for the courts to usurp the functions of the appellate body which has the expertise and ability to determine disputes.

• The courts will not insist that claimants pursue an alternative remedy which is inadequate.

• There may be other exceptional reasons why judicial review is the preferred course.

Consideration

The court noted that there is a statutory duty that Belfast City Council take action if a nuisance arises. There was no argument against the fact that the smells emitted from the site may have created a nuisance.

Equally, the operator of a landfill has obligations not to create a nuisance and to ameliorate any nuisance caused. There is also public interest in securing safe, clean and environmentally friendly conditions.

The council’s decision reflected these statutory considerations, and there was a statutory appeal available also, which was taken by the applicant, but the proceedings were stayed pending this case.

The applicant argued that the appeal process’ district judge could not deal with the procedural issues raised, as these were public law grounds. The court understood this point, but did not consider it to be absolute. Rather, they found that the adequacy of a statutory appeal will depend on the facts and subject matter of a particular case and the terms of the statutory scheme.

They found that the statutory appeal here had a wide remit, and the test whether an abatement notice was justified could encompass procedural errors. The statutory appeal also ensured fairness, through a disclosure process.

Ultimately, the court concluded, in line with the decision of the trial judge, that the statutory appeal provided for an effective alternative remedy. The district judge was well equipped to deal with the appeal, despite the fact that this was an understandably rare and complicated case.

The court determined that there was no exceptional reason here to exercise their discretion to grant leave for judicial review. They noted that while cases of this nature “may be difficult that is not a reason to bypass the statutory appeal route which Parliament has provided for”.

There was no claim made that the statutory appeal route would cause undue delay, and, as the court noted, the appeal route also “chimes with the overriding objective and the need to deal with cases of this nature in a cost effective, efficient way”.

Conclusion

Should the applicant be dissatisfied with the district judge on a point of law, there is a remedy left open to him. That is the “ultimate safety valve” should issues arise which are legally controversial.

Accordingly, the court found that the trial judge was correct to refuse leave to apply for judicial review on the basis of an effective alternative remedy. The application was therefore dismissed.